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Question for a JAG/lawyer; Crown Liability and Proceedings Act

Navy_Pete

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Not sure if this is the correct forum; if I missed a JAG specific forum the fault is completely mine.

While reading the cancellation message on the MATA/PATA issue, (in the newspaper...) it quoted the 'Crown Liability and Proceedings Act section 32C.' and mentioned they had consulted JAG.  I got curious and took a read through it here;
http://laws-lois.justice.gc.ca/eng/acts/C-50/index.html

I'm an engineer and not a lawyer, but after reading the entire act (because I'm pedantic like that) it seems to specifically apply only to liability claims against/by the Crown made in federal court.  Why are they using this to apply a six year maximum term on overpayement?

I also skimmed over the FAA (http://laws-lois.justice.gc.ca/eng/acts/F-11/) but don't see anything with regards to a timeline to recovery, other then the Receiver General is authorized to recover money (155 (3) The Receiver General may recover any over-payment made out of the Consolidated Revenue Fund on account of salary, wages, pay or pay and allowances out of any sum of money that may be due or payable by Her Majesty in right of Canada to the person to whom the over-payment was made.)

Is there really no legal time limit on how far back the govt can go to recover an overpayment to an employee?  That seems pretty unreasonable.
 

DAA

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QR&O 203.04 and CFAO 203-3 provide details relevant to the CF.  You can also have a look at FAM Chap 98 which addresses the issue as well.
 

Navy_Pete

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Thanks, but neither of those seem to provide a statute of limitations for how far back they can go to claw back.  The only thing I found was this TB directive which quotes the same liability act and the six year limit http://www.tbs-sct.gc.ca/hr-rh/in-ai/2011/1216-eng.asp

I know TB sets the overall financial regulations for all govt departments, I'm mostly just curious why they are quoting legislation that was intended to apply only for liability and tort cases in federal court.  Also, if it's a directive, it's not really binding, so with the appropriate approval, is there anything stopping them from legally going back further then six years?

Nice to know that there is some limit, but just can't really wrap my head around why they quoted an act that doesn't seem to apply.  Can this act be used to make an arguement in a lawsuit then to limit the applicable timeline for an overpayment?  Just wondering how this act legally comes into play in an overpayment situation, particularly when in this case, it's the result of a clerical error at the central pay processing vice any liability situation.
 

FJAG

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I can give you some info but perhaps not all.

In general the federal crown is immune from actions by individuals unless the crown specifically allows that. On the other hand the crown can sue individuals. What the Crown Liability and Proceedings Act does is 1) give permission for its subjects to sue the crown and 2) set out procedures that apply in the event of a law suit.

S 32 provides for limitation periods. The important part of the statement is that unless there is in the CLPA (or in any other federal statute) a limitation period set out then the limitation period that applies in the province where the person sued/suing is located shall apply. Each province has a catch-all act called a Limitation of Actions Act (or similar name) that sets those out. Generally a lawsuit for debt has a limitation of six years (please appreciate that these are complex statutes so I'm being very general here)

Effectively what the legal advice said was that the crown has no legal right to recover any overpayments made prior to the limitation period (6 years) and assigns a date to that of 1 Oct 2007. I'm not quite sure what the magic in that date is because the six years is a moving target in each individual case but I presume there was some event on Oct 1, 2013 by which DND either triggered legal action or recovery or whatever and from which it counted backward to determine what may or may not be recovered.

Incidentally claims by or against the crown are not limited to Federal Court. See s 21 of the CLPA which makes it clear that only in circumstances where the Fed Ct has "exclusive jurisdiction" does the proceeding have to be in the Fed Ct, in all other cases, the Fed Ct and Superior Provincial Courts have "concurrent jurisdiction". Exclusive jurisdiction are for things like admiralty cases and such other matters where a specific federal statute (especially the Federal Courts Act) assigns exclusive jurisdiction. Debt claims like this would be concurrent jurisdiction.

Finally note that rules and regulations are subordinate to statutory laws. Even if a regulation allowed overpayment collection going beyond six years then the limitation statutes would kick in to limit the regulation.

Hopefully that answers your questions.

:cheers:
 

DAA

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Great post as always!

I would have to go back and read the original message that was subsequently cancelled, but going strictly on memory.........  I think this had something to do with either a change in Government policy for EI Maternity/Parental benefits or some sort of direction issued by CRA with regards to benefit calculations.  So this was not implemented solely by the CF but rather based on direction received from an OGD who owns the policy.

In which case and based on your response, would it be safe to assume, that the CF is at the mercy of the OGD who issued the direction and thus subject to their regulation?
 

dapaterson

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It was a programming error in CCPS that was corrected as of 01 Oct 2013.
 

DAA

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dapaterson said:
It was a programming error in CCPS that was corrected as of 01 Oct 2013.

Was this picked up "internally" or what it questioned by CRA?
 

dapaterson

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Nothing to do with CRA.  The rules not followed were internal - people received benefits for which there was no entitlement under QR&O / CBI. 
 

DAA

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dapaterson said:
Nothing to do with CRA.  The rules not followed were internal - people received benefits for which there was no entitlement under QR&O / CBI.

Thanks for that info, it now makes sense to me but I am sure it doesn't for others.
 

Navy_Pete

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FJAG,

Thanks very much, that was exactly the explanation I was looking for!  Got interested in the legal technicality behind the decision once I looked at it.

After going through some legal contracting issues recently, started taking a bit of interest in law in general.  Horrifically complicated at times, but seems like a good thing to have a laymans understanding of.

Cheers
:cheers:
 
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